Laura Krantz v. Department of Public Health (SPR 20210565)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Rebecca S. Murray Supervisor of Records March 22, 2021 SPR21/0565 Helen Rush-Lloyd Records Access Officer Department of Public Health 250 Washington Street Boston, MA 02108-4619 Dear Ms. Rush-Lloyd: I have received the petition of Laura Krantz of the Boston Globe appealing the response of the Department of Public Health (Department) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On February 12, 2021, Ms. Krantz requested: “[a]ny/all emails, including attachments that were sent or received in April 2020 between [the Department’s] workers and one or both of the following two people associated with McKinsey…” The Department provided a March 3, 2021 fee estimate totaling $5,931.25. As a result, Ms. Krantz petitioned the Supervisor of Records (Supervisor), and this appeal was opened. In her March 3rd petition, Ms. Krantz asserts, “[b]ecause the Department failed to provide a response within 10 business days of my request, it is not entitled to charge fees under the [P]ublic [R]ecords [L]aw.” In addition, Ms. Krantz asserts, “[e]ven if the Department were entitled to charge fees, which it is not, the fees that it quoted are far higher than would be legally permissible.” It is Ms. Krantz’s contention that the Department is assessing fees for segregation and redaction for exempt material that is not required by law. Fee estimates - Agencies If there are any fees associated with a response a written, good faith estimate must be provided. G. L. c. 66, § 10(b)(viii); see also 950 C.M.R. 32.07(2). Once fees are paid, a records custodian must provide the responsive records. An agency may assess a reasonable fee for the production of a public record except those records that are freely available for public inspection. G. L. c. 66, § 10(d). The fees must reflect One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832• Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Helen Rush-Lloyd SPR21/0565 Page 2 March 22, 2021 the actual cost of complying with a particular request. Id. A maximum fee of five cents ($.05) per page may be assessed for a black and white single or double-sided photocopy of a public record. G. L. c. 66, § 10(d)(i). Agencies may not assess a fee for the first 4 hours of employee time to search for, compile, segregate, redact or reproduce the record or records requested. G. L. c. 66; § 10(d)(ii). Where appropriate, agencies may include as part of the fee an hourly rate equal to or less than the hourly rate attributed to the lowest paid employee who has the necessary skill required to search for, compile, segregate, redact or reproduce a record requested, but the fee shall not be more than $25 per hour. Id. A fee shall not be assessed for time spent segregating or redacting records unless such segregation or redaction is required by law or approved by the Supervisor of Records under a petition under G. L. c. 66, § 10(d)(iv). See G. L. c. 66, § 10(d)(ii); see also 950 C.M.R. 32.06(4). Requirement of responding within ten business days Under the Public Records Law and the Access Regulations (Regulations) all requests for public records must be met with a response within 10 business days of receipt of the request. G. L. c. 66, § 10(a)-(b). The response may contain, among other things, an offer to provide records, a fee estimate for provision of the records, or a denial. G. L. c. 66, § 10(b). All records custodians must comply with both the Public Records Law and the Regulations with respect to the timeliness of response. Records custodians cannot assess fees if they do not respond in compliance with G. L. c. 66, § 10(a)-(b). It is unclear whether the Department responded within ten business days of receipt of the February 12, 2021 request. The Department must clarify this issue. Conclusion Accordingly, the Department is ordered to provide Ms. Krantz with a response to the request, in a manner consistent with this order, the Public Records Law and its Regulations within 10 business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of this response to this office at pre@sec.state.ma.us. Sincerely, Rebecca S. Murray Supervisor of Records cc: Laura Krantz, Boston Globe